Sunday, November 30, 2014

I hope that all Dorf on Law readers have enjoyed the holiday break, and that at least some of us took seriously Professor Colb's moving call to allow our professed values to change the way we think about what we eat.

Although it is not our usual practice to publish Dorf on Law posts on weekends, I wanted to take just a moment to bring attention to two "must reads":

(1) Thomas Palley, a progressive economist (which is, despite all evidence to the contrary, not an oxymoron), has penned a satirical essay, "Economists Without Borders (Economistes Sans Frontieres)," which manages to be surprising in two important ways: (A) It uses the ebola virus as a leaping off point for humor, and (B) It shows that economists can be funny.

(2) In his post two days ago (which I also highly recommend, but which loyal readers will surely have already read), Professor Dorf briefly mentions a guest Verdict column by Cornell Law Visiting Professor Joseph Margulies: "Lessons From Ferguson." I cannot emphasize strongly enough how great this column is. I dare say that it will make you think about criminal justice in new ways. It is almost poetic.

Friday, November 28, 2014

by Michael Dorf
I have now read a large number of excellent (and an even larger number of less-than-excellent) analyses of the grand jury's non-indictment of Darren Wilson for killing Michael Brown. I confess to not having sifted through the gigantic record of evidence presented to the grand jury. I will say that the sheer size of that record supports the charge by critics that prosecutor Bob McCulloch was not treating this as an ordinary case in which he selectively presents evidence tending to establish probable cause to indict. Indeed, McCulloch does not even deny this accusation. I thus share the crtitics' view that a more zealous prosecutor could have pretty easily gotten an indictment here.

On Tuesday, a student asked me whether McCulloch's proceeding in the way he did was defensible. I said that the best defense of his conduct would go like this: It's true that a grand jury is usually a rubber stamp for a prosecutor but in an ordinary case, a prosecutor first makes a decision whether to seek an indictment (via grand jury or, where allowed, by other means). Certainly there are many cases in which a zealous prosecutor could secure an indictment from a grand jury but does not seek one because the prosecutor concludes, based on the evidence or other legitimate factors, that the suspect should not be prosecuted. However, in a high-profile case such as this one, McCulloch could not simply refuse to indict; thus, he enlisted a grand jury to make the decision for him by giving it all of the evidence.

I now think that's not a very good defense, and that McCulloch should have stepped aside to allow someone else (perhaps a special prosecutor) to make a more conventional case to a grand jury. But I also think it's a mistake for observers to focus too much on whether or not the less-than-vigorous presentation of the state's case and the non-indictment decision were defensible. If conflicting evidence meant that Wilson would have been acquitted after being indicted, then maybe the non-indictment is itself a sideshow.

Suppose that a petit jury presented with all of the evidence would have found reasonable doubt and acquitted Wilson following what might have been a televised trial. On the one hand, Brown's family and Ferguson's beleaguered citizens would have had their day in court. But on the other hand, they would find themselves more or less where they are now. Would the outrage over the acquittal of the officers who beat Rodney King, or over the acquittal of George Zimmerman in the Treyvon Martin killing, have been worse if instead of acquittals those cases had produced non-indictments instead? It's hard to imagine how. Yes, it is different to say that there isn't even probable cause than to say that there is reasonable doubt, but that's a nicety for us lawyers, not for the people's sense of justice.

Numerous broader lessons can be, and are being, drawn from the non-indictment of Wilson. Most are understandably critical. On the more hopeful side, my colleague Joe Margulies wrote an excellent Verdict column in which he pointed to the emerging bipartisan consensus that we need to scale down mass incarceration as a way out of the sorts of police/citizen relations that give rise to incidents like the killing of Brown.

Here I'll add one more lesson, or at least a simile. The killing of Brown is like a severe storm: One cannot say for certain that this particular storm would not have happened but for global warming, but one knows that global warming makes storms of such severity more likely overall. Just substitute "racially biased policing" for global warming. (At least half the credit for the simile goes to Professor Buchanan. I was already thinking along these lines but he came up with the particular comparison in a private email.)

The American legal system sometimes has difficulty combining information about specifics with general patterns--especially when race is involved. Consider the Supreme Court's 1987 decision in McCleskey v. Kemp. McCleskey, an African American man, was convicted and sentenced to death for his part in a robbery/killing of a white police officer. His lawyers presented evidence in the form of a study by Iowa Law Professor David Baldus that showed that victim race played a large and statistically significant role in deciding whether a Georgia defendant receives the death penalty, even when controlling for over 200 potentially salient factors. Interestingly, perpetrator race was not a significant factor by itself (perhaps because most crime is intra-racial) but African American defendants convicted of killing white victims were most likely to receive a death sentence.

Justice Powell's opinion for the Court discounted the Baldus study. The Court noted some criticisms of the study that surfaced during the district court proceedings (where Baldus and others testified), but this was not the main reason that the Court ruled against McCleskey's challenge. Instead, the Powell opinion said that even assuming that the Baldus study clearly proved the racial effects in general, his equal protection claim failed because he offered "no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." The Court acknowledged that in other contexts it allows prima facie proof of discrimination to be offered through statistics but thought that the death penalty was somehow different, in part because the state was given "no practical opportunity to rebut the Baldus study." But if that was problematic, it's difficult to see why the right answer wasn't to remand for such an opportunity in the district court.

Here's a way of thinking about what's wrong with the Court's analysis in McCleskey. Suppose that you want to toss a coin to decide some question--say, which of two children will get an indivisible treat. You reach into a bag of 100 coins and randomly select one. Without looking at the coin, you toss it. It lands on heads. Was this a fair procedure? Well, suppose that 20 of the coins in the bag were normal coins but the other 80 were two-headed coins. Absent any additional information, surely the answer is that the procedure was unfair, even though it's possible that you tossed a normal coin. The Powell opinion in McCleskey does not simply say that the coin-toss could have been fair so let's look to see whether the particular coin tossed was two-headed or normal; it says that because it might have been a normal coin, there's no need to worry about the fact that it came from a bag that mostly contained two-headed coins.

To be sure, there's an alternative rationale in the McCleskey case that may have been leading the Court to feign innumeracy. The Court says that "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system," and that, therefore, his "arguments are best presented to the legislative bodies." I'm not persuaded by the McCleskey opinion that the invalidation of a death sentence is an inappropriate response to general proof of racial bias in capital sentencing. However, a better argument can be made that it's improper to indict or convict a police officer of murder or manslaughter based on statistical evidence of systemic bias in the face of considerable (albeit contested) specific evidence that he acted lawfully.

I do share Justice Powell's conclusion that the general fact of racial bias in the criminal justice system cries out for a legislative solution. That fact was painfully obvious in 1987, when McCleskey was decided, and it remains painfully obvious today. Given the persistence of the problem, it is easy to understand (and share) the frustration of minority citizens in Ferguson and elsewhere.

Wednesday, November 26, 2014

In my Verdict column for this week, I discuss the case of Warger v. Shauers. Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict. The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury. In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.

In this post, I want to explore the meaning of a deliberate "lie." In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof. We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life. The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate. Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.

Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased. Does this mean, however, that the juror was necessarily lying? Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations? I think not.

To lie is to to utter a statement that one knows and understands to be false at the time of the utterance. Because we humans so regularly engage in rationalization and subconscious self-deception, however, the category of "lies" turns out to be quite a bit narrower than the category of "self-evidently false and illogical claims."

Thanksgiving is tomorrow, so it seems an appropriate time to cite a familiar example of the phenomenon of non-lying utterance of self-evidently false propositions. Americans in overwhelming numbers claim that they find unnecessary violence against animals to be morally reprehensible conduct and that they would never intentionally cause unnecessary suffering to an animal. Yet most Americans will be feasting tomorrow on the post-mortem remains of an innocent, curious, and nurturing bird who suffered tremendously during his or her radically abbreviated life and then felt terror and pain when facing his or her slaughter at the end. Furthermore, unlike most days of the year, on which the average American may quietly consume the flesh, lacteal, and ovulatory secretions of a tortured being at virtually every meal, Thanksgiving seems to license consumers to openly celebrate the privilege of carving up a corpse whose identity as a "bird" is not even hidden.

Does all of this make Americans' claim that they would never intentionally and unnecessarily harm an animal false? Yes, plainly. Purchasing turkeys and other animal products generates demand for cruelty that is extreme, profound, and entirely unnecessary. Vegan Thanksgiving feasts (some recipes here andhere) are delicious, joyous, and far less likely to yield the food poisoning that is the frequent aftermath of our so-called "Turkey Day" (a name that makes me think of designating a day on which several prisoners on death row are executed as "inmate day").

But false statements -- even preposterously false statements -- are not the same thing as deliberate lies. I suspect that many and perhaps even most of my fellow Americans who participate in a tradition of cruelty and slaughter do so without acknowledging to themselves the horror that they are thereby collectively inflicting on approximately forty-six million of their fellow earthlings. I "loved animals" for years before I became vegan, and I managed for most of that time to inure myself to the fundamental contradiction at the heart of my conduct at mealtime, patting the dog next to the table as I consumed a tortured bird's flesh or ovulatory secretions on that same table.

If we understand that the enormous inconsistency surrounding American consciousness at Thanksgiving is not precisely a "lie," then it would be difficult to accuse the juror in Warger of having lied during voir dire. I suspect that she believed, as most of us believe of ourselves, that she would be fair and open-minded. She probably was not even thinking about her daughter's situation when she answered the attorneys' questions. Likewise, most Americans, if asked "Would you hurt an innocent, feeling creature who loves being patted, displays empathy toward others, and enjoys cranberries and mashed sweet potatoes as much as you do?," would state and would believe that they would not, that they would do the right thing and refrain from violence.

The solution to self-deception is not to call it a lie -- because that does not accurately describe what is going on (and can therefore be called a falsehood in its own right). The solution is to allow ourselves to see the truth that has been there all along and to act accordingly. The problem is rarely the utterance of a deliberate lie. It is more commonly the failure to look clearly and unflichingly at ourselves, at our values, and at how those values can and do manifest themselves in our conduct in the world. And the good news is that we can make the decision to change.

Tuesday, November 25, 2014

It is a short holiday week, and even if I had something to say about the big national news story from Ferguson, Missouri, I would rather write about something relatively frivolous. And, as Professor Dorf's recent personal remembrance of his days as a jock demonstrated, nothing quite matches sports for its marriage of complete unimportance with intense interest. When it comes to American college football, I have written some rather serious things (see most recently here) about the institutions of higher learning that serve as host/sponsors to the lucrative games, and I hold what appears to be a minority view about how the lucre should be spent.

Today, however, none of that matters, for I want to talk about the College Football Playoff (tm). More accurately, I want to complain about the consistent inanity of the talk among college football commentators about the playoff. Not that this should surprise anyone. This is still a world in which people seriously argue that a coach in 2014 is historically great, because he has just set the record for most consecutive 9-win seasons. This is ridiculous, of course, because it conveniently ignores that it is only in the last decade or so that teams have played 13 or 14 games in a season, whereas within my lifetime teams would play ten games and, even if they won almost all of them, would not play in a bowl. Nine-and-five is just not the same as 9-1, but you would never know that from listening to anyone on ESPN.

Even so, there are two remarkable things about people's reactions to the new playoff system. First, as I predicted some time back, the new four-team system (replacing the BCS two-team championship that lasted for almost two decades) satisfies no one. Just last weekend, one of the sports shows displayed the results of a poll of college football coaches regarding the optimal size of a playoff system. A majority favored either 8 or 16 teams. To hear the talk last year, the only problem was that it was all terribly unfair when a third team was left out of the BCS championship in the occasional year when there were three undefeated teams. Now, the problem is that we're not sure whether a team with a bad loss on its record (e.g., Ohio State, which lost at home to a terrible Virginia Tech team in September) will be able to show that it really deserves to be #4.

I promised not to be serious here, but it is at least worth mentioning that the extra games are physically debilitating for the players. The players themselves, of course, will always look into a camera and say, "Let us decide it on the field," but it is notable that the NFL players' union has consistently opposed increasing the length of the regular season schedule, as well as expanding the playoffs. This is still one of the most brutal and dangerous sports that people are willing to watch, and adding rounds of playoffs would guarantee many more serious injuries, many of them career-ending.

It is not, therefore, as if it is "free" to add more games. Nonetheless, it is at least amusing to see how earnestly people on the sports shows will talk about the injustice of having only four teams make the playoff. I have always liked the pre-BCS system, in which there was no attempt to coordinate an on-the-field champion. Last Saturday, because nearly all the big-time teams were playing "cupcake games," I ended up watching the Harvard-Yale game. The second-highest division of the NCAA in which the Ivies play has a playoff system, but the Ivy League prohibits its teams from playing in it. One of the commentators said that he had asked the players whether they felt cheated by not being able to compete for a national championship, and apparently they said that they like knowing that the last game of the year will be their big rivalry game.

In pre-BCS days, Oklahoma and Nebraska would play nearly every year for the Big 8 championship, and the winner would play in the Orange Bowl. Meanwhile, Ohio State or Michigan (or, occasionally, Wisconsin or Iowa) would play USC or UCLA in the Rose Bowl. The best years were those where, say, Oklahoma would beat Notre Dame in the Orange Bowl, and USC would beat Ohio State in the Rose Bowl, and then no one was happy. Except that everyone was happy, because they had something to argue about for years. Ask any Michigan player if beating Ohio State at the end of the season, and then playing (most likely losing) in the Rose Bowl was a successful season.

So, nothing has been gained in terms of making the game more exciting, fulfilling, or anything else by dumping the old system. "Deciding it on the field" sounds like it means something, but unless we are really going to go to a 64-team playoff, the arguments will never end. Even in men's basketball, where the NCAA does run a 64-team playoff, there are arguments about "bubble teams," and about bad calls and all that. How about best-of-three championship series? Make that best-of-seven! Oh brother.

The second remarkable thing that has emerged in this year's new playoff system is the expert panel that will anoint the four semifinalists. That panel includes a collection of respected college athletic directors, former coaches, and so on -- and, for reasons that mystify me, Condoleeza Rice. (I know, she was Provost at Stanford before becoming a neocon princess, but so what?) Starting at mid-season, that committee has been releasing weekly rankings of teams, with members of the committee offering cryptic comments about what they are taking into account, all of which leads to mad speculation about what they really care about.

And it turns out that this committee is actually pretty savvy. To hear the commentators on the sports shows (former coaches and players, mostly) talk about it, the primary thing that should matter is win-loss record. Except, you know, when it doesn't. So, this year, everyone is in a tizzy because the committee has said that Florida State is #3, even though it is the only undefeated team among the "Power 5 conferences." The thing is, Florida State does not at all look like the best team in the country. They have played no one of any consequence, and they keep barely winning. Now, of course, the new narrative is that winning close is their "signature."

Meanwhile, take a look at the Western Division of the SEC. Those seven schools beat up on each other every week, but the evidence is that they are the best in the country. The teams in the division have lost exactly three games combined outside of the division, and all three were to the two best teams in the SEC East (twice to Georgia, once to Missouri). I am no fan of the SEC, having grown up in Big 10 country, but quality is quality. If a team plays tough games every week, sometimes they will lose. Meanwhile, Florida State barely wins against mediocre opponents. Everyone seems comfortable with the idea that undefeated Marshall cannot be taken seriously, because they "haven't played anybody"; but at least Marshall wins its games convincingly. Florida State has been blessed with weak opponents, too, and it barely manages to win.

The traditional polls (the sportswriters for the AP, and the coaches for USA Today) are impressed by the win-loss mark. True, one-loss Alabama tops the coaches' poll this week, but Florida State received more first place votes than 'Bama. And the commentary is all about "proving it on the field." One of my favorite lines is: "Florida State has won every game. What more could they do?" Marshall? "Well, they don't play anybody."

Which is why I write to praise this particular expert panel. They are actually trying to figure out which teams are the four best in the country, based on a combination of factors that seem to make sense. (There are still some oddities, like having TCU ahead of Baylor, even though TCU lost to Baylor.) In a system that should not exist, and where the matter being decided really could not be less important, this committee has decided to ignore the encrusted conventional wisdom and actually think clearly about the issues. If only the buffoons on the Bowles-Simpson committee had done the same!

Saturday, November 22, 2014

by Michael DorfI begin by establishing my disinterested bona fides with respect to the dispute about whether the president has authority to defer deportation of, and other enforcement measures against, undocumented immigrants in certain favored categories. I do not consider myself an expert in immigration law and I shall try to set aside whatever views I might hold about immigration policy, which are, in any event, only those of a reasonably well informed citizen rather than an expert.

we find deeply troubling any suggestion that the president can simply choose not to enforce some law on the ground that he disagrees with the policy underlying that law. At a minimum, we would expect the president to offer some justification for not enforcing a law. With respect to marijuana possession and deferred action on unlawful immigration, the Obama Administration has invoked the traditional prosecutorial discretion that the executive branch enjoys in such matters. Perhaps that argument is persuasive; perhaps it is not.

What would make the argument more or less persuasive? I shall mostly consider immigration but I'll then double back to marijuana.

(1) It is possible to argue that the president has inherent authority to choose not to enforce any law he doesn't want to enforce for just about any reason. Professor Eric Posner arguably flirted with this idea back in August in response to a Ross Douthat NY Times piece, but even there, I think Posner was better read as making the much more modest claim that the president has prosecutorial discretion to allocate enforcement resources to the most serious offenses. Certainly that is the tune he is singing more recently.

(2) In any event and more importantly, the Obama Administration has not claimed anything other than prosecutorial discretion. The Office of Legal Counsel (OLC) memo that provides the legal justification for the new policy (and for the limits on the new policy) begins (after some throat clearing) as follows:

As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the “faithful[]” execution of the law does not necessarily entail “act[ing] against each technical violation of the statute” that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985).

After some further discussion, the memo then sets out four principles that govern the exercise of this discretion. They are: (i) Congress can limit the executive branch's prosecutorial discretion; (ii) "an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering"; (iii) "the Executive Branch ordinarily cannot, as the Court put it in Chaney, 'consciously and expressly adopt[] a general policy that is so extreme as to amount to an abdication of its statutory responsibilities' "; and (iv) "non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis."

The memo approves what became the Obama policy by characterizing it as an effort to assign priority to the 400,000 undocumented immigrants who can be removed with the allocated resources out of the 11.3 million who are present in the country. The policy satisfies principles (i)-(iii) because it broadly conforms to priorities set by Congress. It satisfies principle (iv) because it "provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases."

(3) In an intriguing post for a terrific symposium on Balkinization, Adam Cox and Cristina Rodriguez disagree with what they take to be a judgment in the OLC memo that Congress provides the principles that guide prosecutorial discretion. They argue that both in general and with respect to immigration policy, the exercise of prosecutorial discretion has been and legitimately should be guided by factors going beyond those articulated by the legislature. As they note, "prosecutors talk often of the fact that their job is to do justice, not scrutinize the criminal code for answers."

Although I agree with the Cox/Rodriguez position, I'm not sure that they offer a fair criticism of the OLC memo. As noted above in (2), the general criteria espoused in the memo do not say that the principles guiding prosecutorial discretion must be derived from congressional policy; they only say that the exercise of prosecutorial discretion must not contradict congressional policy. It's true, as Cox and Rodriguez note, that the memo roots the policy of family unification in statutory provisions, but that's just overkill. Guidelines for the exercise of prosecutorial discretion that are derived from a statute enacted by Congress will surely be consistent with congressional policy. And that is all that the memo really says is necessary.

(4) I nonetheless think that Cox and Rodriguez are onto something fundamentally true in pointing to the inevitability of policy discretion in any exercise of prosecutorial discretion. Consider the decision of the Obama Administration to step back from enforcement of federal marijuana laws in states that have legalized medical or recreational marijuana. The August 2013 Justice Dep't memo on the topic is very clever. It notes that traditionally the feds have focused on trafficking, while leaving possession offenses to state enforcement. Even with states legalizing individual possession, the memo says that the feds can continue to focus on distribution-type offenses, because DOJ expects "that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems," and that these systems will ensure that state-legalized marijuana will not pose a threat to federal enforcement priorities.

Yet federal law forbids not only distribution but also possession of marijuana--even in small quantities for personal use, including medical use. The prior regime of federal (mostly) non-enforcement of the prohibition of mere possession of personal use quantities was based on a division of labor: the state and local authorities would be better at doing that. But once states legalized such use, that rationale no longer applied. The new rationale comes perilously close to violating pirnciple (iii) of the immigration memo: abdicating statutory responsibilities.

Suppose that a state legalizes hate crimes. If the DOJ had previously relied on state prosecutors to go after low-level hate crimes while saving its resources for a sub-category of federal law consisting of more serious hate crimes, wouldn't the state's legalization decision be a reason for the DOJ to devote more resources to enforcement efforts in that state, not fewer, as with the marijuana example? What's the difference?

I think the obvious answer is that the Obama Administration (like any administration, one hopes) is more sympathetic to low-level marijuana possession than to low-level hate crimes. Even if one thinks that the decision to focus attention on traffickers is permissibly rooted in judgments about how best to marshall resources, those judgments are closely related to normative judgments about the relative importance or even wisdom of various provisions of law.

(5) And that was all pretty obvious in President Obama's announcement of his immigration policy. His argument is not that it's regrettable that the government lacks the resources to deport all 11.3 million undocumented immigrants but that's the triage he must perform to best use the limited resources Congress has given him. His argument instead is that the law ought not to permit, much less require, deportation, for millions of people in that group. Hostility to certain aspects of the law is, in this instance and many others, part and parcel of the exercise of prosecutorial discretion on ostensible grounds of scarce enforcement resources.

(6) Having said all of that, I doubt that anyone has standing to challenge the exercise of prosecutorial discretion--although standing doctrine is notoriously manipulable for ideological ends. Even assuming a justiciable case could be brought, I think that the inevitability of wide-ranging policy considerations in the exercise of prosecutorial discretion should make it very hard for a court to say that a president has, in the guise of triaging resources, really just abdicated his responsibility under the Take Care Clause.

But that doesn't mean that the president has no duty under the Take Care Clause. Here, as elsewhere, the Constitution may limit a president's options even if no court will enforce those limits. Whether President Obama has transgressed those limits seems to me a closer question than partisans on either side have acknowledged. To my mind, the judicially unenforceable constitutional norm goes something like this: A president may not use considerations of resource allocation merely as a pretext for undermining a law that he would prefer to simply not enforce regardless of resources.
It's hard to know whether President Obama has violated that norm because so much of his political rhetoric that sounds in naked abdication--such as "we can't wait"--is, after all, political rhetoric. Insofar as the more limited and sober OLC memo formed the real basis for the shape of the ultimate policy, the president may be able to say that the rhetoric was always just puffery. Of course, if I'm right that any court challenge would not get past a motion to dismiss, he need only make this excuse to himself and to the court of public opinion.

How this will ultimately play out politically remains to be seen, but my money is on Obama "winning" this confrontation for two reasons. First, the public tends to focus more on the substantive merits of a policy than what we lawyers see as battles over basic structural principles like separation of powers or federalism; the fact that much of the Republican opposition to the policy is procedural is something of a concession that he will win the policy debate. And second, much of the opposition to Obama's policy is over the top.

As I've explained here, there is a legitimate question of whether this policy and many others pursued in the past by presidents of both parties push the notion of prosecutorial discretion too far; and a genuine assertion of power to exercise prosecutorial discretion not to enforce a law at all in the face of a contrary congressional judgment would be a serious threat to separation of powers. So to the extent that Obama's immigration policy ends up being used politically as a precedent for truly dangerous executive overreach by a future (Republican or Democratic) president, I worry that my friends who signed a scholars' letter that makes the same sorts of measured arguments found in the OLC memo may live to regret doing so.

Friday, November 21, 2014

by Michael Dorf
My retirement from my favorite sport looked nothing like Derek Jeter's retirement from his. There were no standing ovations, no sneaker ads, no ESPN encomia. That's fair enough. If not quite the second coming of Babe Ruth that some of his fans seemed to believe, Jeter was nevertheless a truly great professional baseball player and a certain first ballot Hall-of-Famer, whereas I was never more than a mediocre recreation league basketball player.

So what did my retirement from basketball look like? Not much. One second I was boxing out for a rebound. The next moment my back seized up and I could barely move. Nothing dramatic precipitated the injury. I didn't jump and then land awkwardly. There was no sudden twisting motion. I was fine. And then I wasn't. The pain and reduced mobility only lasted for about a day but, coming on top of everything else, I knew it was time. Well past time.

When I was in my early thirties, I had what should have been a "career"-ending injury. I made a layup and landed on another player's foot, breaking three small bones in my own foot. I was in a cast for six weeks and on crutches for another six weeks; it took nearly a year of physical therapy before I had a full range of motion back in my foot. I returned to the basketball court but promised myself that I would give the game up after my next major injury.

There followed nearly twenty years of rationalizations and Bill Clinton-esque parsing of just what makes an injury "major." When an unexpected no-look hard pass from a teammate broke my thumb, I concluded that this was not different in kind from the countless jammed fingers I had suffered since first playing ball as a small child. Those weren't major injuries, so neither was this one. When I seriously injured my back in 2008, I couldn't claim that I had suffered only a minor injury. But when I eventually got better I convinced myself that the back injury didn't count because it didn't occur as the immediate result of playing basketball. I attributed my sciatica to too-many piggyback rides for my no-longer-so-small daughters.

Meanwhile, my basketball skills evolved. I was a pretty big kid and so when I was young my natural position was power forward. I developed a "physical" game, which is a polite way of saying that I fouled a lot. But I mostly played pickup: players called their own fouls and it was worse to be a whiner than a hacker, so there was no penalty for my style of play. When I played in games with refs, I frequently found myself in foul trouble, and so, over time, I became more of a finesse player. The transition was made easier by the fact that my size advantage as a youth went away. As a 6'0" adult, I was mostly playing with bigger guys. I worked on my ballhandling, my passing, and my outside shot.

The results were mixed. As a teacher, I pay attention to negative student evaluations as a means of improving my courses the next time. But to protect my ego, I remember the positive ones. One of my favorites went something like this: "Dorf is genuinely funny, not just funny for a law professor." I'd like to think that's true but I certainly haven't put the question to the test with a standup act. I do know that what talent I had at basketball made me at best a pretty good basketball player for a law professor.

Yet sometimes that's enough. Consider my game-winning buzzer beater in the 2003 Columbia-NYU faculty game. As the story just linked recounts, the final score of that game--which was 10 minutes running time--was 6-5, so I hardly produced an offensive explosion. But in the land of the blind, the one-eyed man is king.

Each year the Association of American Law Schools runs a conference for new law professors. The year I went, one of the speakers was Harold Koh, who cautioned against new teachers spending too much time preparing their courses, to the detriment of their scholarship. He said something like this: "You should work to be a good teacher, even an excellent one. But don't do it for the wrong reasons. The professional rewards go mostly to scholarship. Winning a teaching prize is rewarding but only in the same way that hitting a home run in the student-faculty softball game is rewarding."

It was a good line and it stuck with me, but I reject the premise. Hitting a home run in the student-faculty softball game--or, what amounts to the same thing, making a buzzer-beating game winner in the faculty basketball game--is not a trivial accomplishment.

Let me rephrase that. Of course those are trivial accomplishments. And yet, they feel important. I think about that 2003 buzzer beater more often than I think about some of the law review articles I wrote over the course of many months.

Giving up basketball is hard for two obvious reasons: (1) I still love the game I first experienced as a second grader trying to emulate Reed, Debusschere, Bradley, Frazier, and Monroe; (2) It's an admission that, on the wrong side of fifty, I'm not a kid anymore, not by a long stretch.

It's also hard for another reason I think. I am by nature competitive, unhealthily so. Consider the fact that on Wednesday, for the third consecutive year, I won the Cornell Law School faculty pie-eating contest.

For me, basketball was a harmless way to channel my competiveness, not despite the fact that I was a mediocre player but because I was a mediocre player. I could and did take pride in my meager accomplishments as a basketball player precisely because the stakes were so low. Basketball mattered to me because winning a pickup or intramural game of basketball didn't really matter. It was a place I could enjoy winning so much because I didn't care if I lost. In giving up basketball, I hope I can find a way to bring that attitude to some of the things I do that matter more.

(As an aside, I hope that people will read the column simply for the section in which I explain the recent mini-controversy over arrogant remarks by Jonathan Gruber, an Obama Administration economist, who repeatedly mocked the "stupid voters" who had to be fooled for their own good. Short version: He's just saying what all economists -- liberal and conservative -- think. "We're smart. Everyone else is an idiot.")

The logic in my column is basically this: Republicans are having some success convincing people that anything resembling a well-regulated private health care system is bound to fail. The public will hate the status quo ante, which we know because they hated the status quo ante enough that we ended up with the ACA. In fact, the post-ACA status quo would probably be even worse (for reasons that I discuss in the column). No one will trust the government to do anything right, but no one will be happy with an unregulated mess. Time for something tried-and-true. Which part of the health care system does nearly everyone like? Medicare, of course. It has low administrative costs, it is already "scaled up," and it has been in place since the end of the Baby Boom. And, of course, some people think that it is not run by the government (which is weirdly a plus in this circumstance).

As I concede at the end of the column, I am not putting a high probability on this outcome. The higher probability is that we will muddle along for decades, with too many people dying prematurely from lack of care, too much money being spent on executive salaries and marketing materials -- and cost-shifting strategies -- and everyone wondering why the health care sector continues to absorb twice as much of our (slow growing) economy than every other country on the planet. At some point, however, the pressure could become too strong. At least, I am willing to imagine that happening, as one plausible outcome.

How might the transition happen? The most straightforward approach, of course, would be simply to announce that on a particular date, everyone will be covered by a single-payer plan. That would require a huge amount of work regarding transition rules, but at least it would be "simple" in the sense that there would be as few moving parts as possible. Those transition rules, however, would be huge, because we would need to figure out how to allow health insurers to shut down in an orderly way, how to handle transitions of ongoing care, and so on.

How best to smooth the transition? One idea is to lower the eligibility age for Medicare in increments, until everyone is covered. Sounds good, sort of, but let's think about this. (Another aside: The suggestions by "fiscal centrists" to increase, rather than decrease, the Medicare eligibility age have been definitively shown to be budgetary losers, rather than winners.) What concerns might arise from this transition?

Suppose that the plan is to reduce the eligibility age by two years every year. So, in Year 1, the age is lowered to 63, to 61 in Year 2, and so on. One problem is that there will be a bunch of gaming around the transition period. If I am 60 in Year 1, then I know that I will be covered in Year 2. If I am 57 in Year 1, then I will become eligible in Year 3. In either case, do I continue to pay private health care premiums for a year or two, or do I hope for the best and expect to deal with the fallout once I am safely in Medicare's embrace? It is easy to imagine people making foolhardy decisions, worsening their overall health and increasing overall costs to the public system.

Another question: Why do the kids come last? At the point where we are covering 47-year-olds, why should their children still be covered by private insurance? Would employers discontinue (or radically change the terms of) family health insurance coverage if the parent/employee is no longer covered? Would the answer then be to come at it from both ends, with Year 1 seeing coverage not only for 63-and-up but for children 0-2? We then meet in the middle a decade or so later?

It seems likely that there would be a tipping point at which it made no sense to maintain the slow transition. Years in which, say, only people between 24 and 41 could be uncovered would obviously be untenable. The likely logic would be: "What are we doing? We have proved that Medicare can be expanded, so there is no reason to wait." A transition would come to be seen as ridiculous. However, this does not mean that the "right" amount of transition time is none at all. I do not think it useful to imagine an economic model of "optimal transition," but it does seem plausible to foresee a relatively short period in which we prove that Medicare can add millions of people to its rolls. (Doctors and hospitals, by the way, would have it easy. They already deal with Medicare, and they would simply find that more of their patients are covered under that system.)

These are just a few preliminary thoughts about a possible transition path from a dysfunctional system to a system that works. There would certainly be all kinds of claims for compensation from health insurance companies, including most likely an effort to press a "regulatory takings" challenge to the whole idea.

Most of the questions, however, are political in the sense that Professor Gruber's remarks clumsily capture. How would we label the new Medicare taxes, which would in fact simply be replacing (at a lower overall cost) the private health insurance payments that many employees never see, but that are very much part of their "employment compensation"? Would the fact that a big chunk of the economy would suddenly show up as "government spending," even though the overall system would be cheaper, matter? I guarantee you that politicians of all stripes would be trying to figure out how to use words to "fool stupid voters" into supporting or opposing the transition.

The problem for anti-single-payer people, however, is that the momentum would be unstoppable, once the transition began. That has been true of the ACA, and it will be even more so with Medicare For All. That is why the fighting is so fierce now. As I noted in my column, however, the people who hate "Obamacare" might be paving the way for something much bigger. I would like single-payer to happen because people like it on its merits, but we might require this ugly transition period. That would be a waste, but better than continuing on our current course indefinitely.

Wednesday, November 19, 2014

by Michael Dorf
In my latest Verdict column I warn of a possible danger in King v. Burwell, the latest SCOTUS challenge to Obamacare: I explain that even if a majority of the Court rejects the petitioners' argument that subsidies should not be permitted on a federally run health insurance exchange, the Affordable Care Act could still go up in flames depending on how CJ Roberts votes. Suppose that CJ Roberts concludes that subsidies are unavailable but that Justice Kennedy splits with the other conservatives to say that they are available. The law survives 5-4, right? Maybe not, I argue in the column. Perhaps Justice Kennedy will adhere to his view from NFIB v. Sebelius that the individual mandate is unconstitutional and non-severable from the rest of the ACA, including the subsidies. Confused? Go read the column. It explains the murky law governing when a Justice adheres to his prior dissenting vote.

The column addresses the question of how each of the four dissenting NFIB Justices should decide whether to adhere to his prior vote. But there is a further question about how to tally those votes: whether the Court counts votes by issue or by outcome.To understand the difference, let’s suppose that after the oral argument in King, the Justices go around the table and state their respective views as follows: Six Justices (Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan) say that subsidies are permitted on federal exchanges; three Justices (Roberts, Scalia, and Thomas) say that subsidies are not permitted on federal exchanges; and the four Justices who previously voted to invalidate the entire ACA (Scalia, Kennedy, Thomas, and Alito) reiterate that view because they continue to think that it is inextricably intertwined with the individual mandate, which they believe is beyond the power of Congress.

What is the bottom line? If we look at the matter issue by issue, the ACA survives. The Court rules 6-3 to permit subsidies on federal exchanges; and only 4 Justices express interest in overruling the 2012 decision sustaining the individual mandate against the constitutional challenge, so the law remains constitutional.

But if we look at the bottom lines (in my admittedly hypothetical version of the case), we get a different result. Only 4 Justices think that the law both falls within the power of Congress and permits subsidies on federal exchanges. If the question is whether the subsidies survive, outcome voting gives a negative answer: two Justices (Kennedy and Alito) think that the law permits subsidies on federal exchanges but is unconstitutional; one Justice (Roberts) thinks the law is constitutional but forbids subsidies on federal exchanges; and two Justices (Scalia and Thomas) think that the law forbids subsidies on federal exchanges and is also unconstitutional.

So which is it? Issue voting or outcome voting? Somewhat surprisingly, the law gives no clear answer. The matter appears to be left to the discretion of individual Justices. Sometimes a Justice who would be inclined to overrule a prior decision if faced squarely with that possibility will nonetheless accept the prior case’s authority for purposes of deciding the new case. In other words, he or she will cast her bottom-line vote—to reverse or to affirm the lower court—based on her tally of the issue-by-issue voting.

But not always. When the Court fractures so that there is no majority opinion that commands five votes, outcome voting usually prevails, so that the bottom line is constructed from varying, even conflicting rationales. The 1949 case of National Mutual Ins. Co. v. Tidewater Transfer Co. is an arresting example. There a majority of Justices rejected the claim that Congress could vest jurisdiction in the federal courts over cases besides those listed in the Constitution’s Article III. A majority also rejected the proposition that the District of Columbia counted as a state for purposes of the provision of Article III permitting jurisdiction over state law cases involving citizens of different states. Yet because those conclusions were reached by different majorities, the bottom line was that Congress was permitted to authorize jurisdiction over state law cases between citizens of the District and citizens of a state.

As I have observed before, there is no all-purpose answer to the question of whether and when to use outcome voting versus issue voting. In that earlier post, I noted that, given how frequently judges disagree about all sorts of matters, it's a little surprising that the outcome-versus-issue voting question doesn't arise more frequently. I speculated that judges are pragmatists who must reach a judgment, and that this imperative drives them to submerge these matters. But at least four Justices thought that King was a sufficiently weighty case to grant cert despite the absence of a split (following the en banc DC Circuit decision to vacate its contrary opinion on the same issue). That's either a sign that at least four Justices are not thinking pragmatically or, worse, that they are--and that they have concluded that this time around they may be able to capture a fifth vote to kill the ACA.

Tuesday, November 18, 2014

In my Dorf on Law post this past Thursday, I noted that the post-midterms political conversation was initially dominated by promises from the Republicans that they would prove that they can "govern responsibly." This essentially meant that they were promising not to shut down the government again. Although few people specifically discussed the debt ceiling separately, the clear implication was also that their hostage-taking strategy of 2011-14 would not be used in 2015.

My favorite line describing the new political reality came from unnamed aides to rising Senator Majority Leader Mitch McConnell, who described Senator Ted Cruz as an "army of one." Cruz was the architect of the 2013 shutdown, and he is not only completely unrepentant, but he apparently has convinced many of his followers that they "won" the shutdown. With Cruz being attacked so bluntly, the clear implication is that the Establishment-connected extreme conservatives have wrested control from the Tea Party-connected extreme conservatives, and that this means that stupid stunts will no longer be tolerated.

Maybe. Clearly, the Establishment types are right that their party does itself no favors with these hyper-confrontational strategies. The problem is that there are always reasons at least to try to have a stare-down with the President, on the theory that one can steer out of any skids in time to prevent a crash. (Sorry for the mixed metaphor.) An unexpected crash, however, is exactly what happened in the Fall of 2013, when (as even a cursory review of the political commentary in August and September of that year would show) every pundit and every Republican insider was certain that there would be no shutdown and no debt default standoff. Then path dependence set in, and people were afraid to back off, for fear of looking weak. Supposed "centrists" (who are, again, actually extreme conservatives) like John McCain started making speeches about how Obama was being obstinate and arrogant for refusing to negotiate. We all know what happened next.

As I have said for months, the timing of the next debt ceiling deadline contributes to an absolutely perfect recipe for disaster. The debt ceiling will be un-suspended on March 15, at which point the only way to prevent default will be for Treasury to employ the "extraordinary measures" that we have come to know and love. The best guess for a real drop-dead date is mid- to late April. The chances are reasonably good that the government will be operating under a continuing budget resolution at that time, which will present the President with a "trilemma" -- the necessity to default on spending obligations, to increase taxes, or to exceed the debt ceiling. Note, however, that we learned last year that even the expiration of a continuing resolution (that is, a shutdown) does not prevent the onset of a trilemma, because there is enough ongoing mandatory spending that debt continues to rise even during a shutdown. (To be clear, there is absolutely nothing wrong with that. Debt should rise in a growing economy.)

So, the only way that there will be no debt ceiling-caused default is if the debt ceiling is increased by late April 2015. That is more than 18 months before the election, and it will be oh-so-tempting for Republican extremists to think that they can have their fun with Obama and still have enough time to recover from the fallout before the 2016 elections. After all, the 2014 midterms were only a year after the last shutdown, and look how well things turned out! (Not that I buy the excessive hype about the "drubbing" that the Democrats supposedly took in the midterms, but what matters is what the crazies think.)

Now, an additional wild card has been added into the deck. The post-midterm talk about governing responsibly has quickly been replaced by Republican outrage over President Obama's discovery of his spine. While I was channel surfing recently, I even saw my GW Law colleague Jonathan Turley (who is a mainstay on MSNBC) being fawned over on Fox News, because he was arguing that the President's plan to take executive action on immigration would be a gross violation of the separation of powers. Even so, the host did not challenge Jon when he warned that impeachment would be a bad idea, and that shutdowns (including mini-shutdowns) should also be off the table. Apparently, Republicans are returning in desperation to their much-mocked idea to sue the President, which they tried this past summer.

If Obama has really decided that he is finally free, and that he is going to take bold and risky actions, then that could completely change the dynamics of the debt ceiling. If he becomes convinced that the Republicans will never impeach him, or that he is willing to fight the PR war of an impeachment, he might finally come around to embracing the Buchanan-Dorf line, which says that the President could accurately describe a decision to exceed the debt ceiling as the most modest move available, and that he is required to do so by core constitutional principles.

I am not predicting that Obama will do that, but for the first time, it seems possible that Buchanan-Dorf cannot be dismissed as being "correct, but obviously a politically irrelevant non-starter." Even short of invoking our argument, the President could adopt a strategy that I suggested long ago, in which he would seize the narrative by saying something like this: "Republicans claim that they will not give me what I supposedly want, i.e., a debt ceiling increase, unless I give them what they want. Well, I don't want a debt ceiling increase any more (or less) than they should want it. So, if they want me to sign a debt ceiling increase, here are my demands: (1) a national $15 minimum wage, indexed to inflation, (2) an increase in the estate tax, to return it to 2001 levels, (3) the repeal of all abortion restrictions nationwide, (4) updates to the National Labor Relations Act that will effectively increase union membership, (5) my immediate confirmation as Chief Justice of the United States Supreme Court , (6) ..." You get the idea.

Would the President be blamed for the ensuing deadlock over the debt ceiling, if no agreement were to be reached? Maybe, if he is viewed as being unreasonable. But he could certainly calibrate his demands to be no more outrageous than those on the Republican side. If Republicans say, "We won't pass a debt ceiling increase unless you do X," Obama can say, "No, I won't sign a debt ceiling increase unless you do Y." An emboldened Obama might be just the guy to kill the strange idea that debt ceilings are politically useful vehicles to extract concessions from the President.

All of which raises an interesting question that a frequent commenter to Dorf on Law, who has adopted the online nom de plume David Ricardo, posed in response to my post last Thursday: "[I]f the President is presented with a conditional debt ceiling increase
bill and his choices are to (1) sign the bill, (2) veto the bill and
allow default or (3) veto the bill and ignore the debt ceiling and to
continue to pay the debts as they come do, spend what Congress has
authorized and appropriated and to issue new debt as needed then why
isn't he required to sign the bill as the least un-constitutional
action? Doesn't the President in this situation create the
trilemma by his veto, as the trilemma would not exist if he signed the
bill?"

What is interesting here is that Ricardo's comment is the honest version of an opportunistic and dishonest argument that the Republicans have tried to make all along: A President can avoid the bad consequences of a debt default by agreeing to his opponents' demands. A hostage crisis can be ended, after all, if the hostage takers' demands are all met. In fact, there are reasonable versions of many Republican arguments, including actual scientists' statements regarding the remaining gaps in the theories of evolution, climate change, and so on. The problem is that those arguments are then exaggerated and misused. But the honest questions themselves deserve consideration.

As an initial matter, I can simply adopt as my own a reply
comment from Paul Scott: "Separation of powers runs in both directions.
That failure to sign a
bill would result in a 'trilemma' cannot itself be used to force the
avoidance of that trilemma. To do so would allow Congress to make laws
without the involvement of the executive (or without a super-majority of
both houses). Relating back to the comments of doing the least
harm to the constitutional structure, we cannot conclude that putting
the executive in a trilemma is an acceptable means for Congress to
circumvent the constitutional requirement that the President sign a bill
into law (or that a super-majority of Congress do so over the
President's objections)." Quite so.

No matter the reason for a trilemma, the President is facing a properly-enacted set of laws regarding spending, taxing, and borrowing. If the debt ceiling crisis were deemed to be "Congress's fault," then that is still no reason for the President to press his advantage and worsen the constitutional damage by adopting what amounts to a line-item veto, changing Congress's spending priorities under the guise of being "forced" to do so by Congress's bad-faith refusal to increase the debt ceiling.

And if the President must not seize this power when he is not at fault, then certainly he must not do so when he is to blame. Professor Dorf and I have both discussed in passing the possibility of strategic presidential actions that would force a debt ceiling crisis. (My list of demands above is simply an extreme version of this.) If the President refuses to sign a debt ceiling increase, no matter whether he is being reasonable or unreasonable, he certainly cannot then be allowed to say, "And now I am tearing up the appropriations laws that are on the books, so that I can decide who gets paid and who has to wait."

The broader point is that the President does not "get to do" something
wonderful (from his perspective) when he follows the Buchanan-Dorf
argument. A President does not "win" when he exceeds the debt ceiling under a trilemma. He simply has to decide which law to disobey, by applying core constitutional principles. Once he has made the correct choice to issue additional debt, he then does exactly what he would have been required to do, had there been no debt ceiling crisis: pay the bills to which Congress has previously committed the nation, on time and in full. It's a boring job, but a President's gotta do it.

Monday, November 17, 2014

by Michael Dorf
Last week, Justice Thomas, joined by Justice Scalia, issued a brief statement respecting the denial of the stay application in Maricopa County v. Lopez-Valenzuela. The statement made waves because it criticized the Court's failure (thus far) to grant certiorari in the same-sex marriage (SSM) cases, even though Maricopa County was not a SSM case. Together with the dissent by the same duo from the denial of the stay application in Moser v. Marie--which is a SSM case--Maricopa County provides a glimpse into the generally opaque cert process w/r/t SSM.

It appears that seven Justices have been voting to deny cert in these cases. Presumably at least five of those Justices--and presumably they are Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan--have been voting to deny because they are content with the lower court rulings invalidating state SSM bans. More interestingly, the voting pattern suggests that CJ Roberts and Justice Alito have either had a change of heart re SSM since Windsor or (more likely) have been voting to deny cert because they know their side will lose anyway and would prefer to avoid the issue. Of course, we'll likely get a fuller picture soon enough, as the Court will almost certainly grant cert in the Sixth Circuit case. The only real mystery remaining there is whether they will drag it out so that the case doesn't reach them until next Term.

Looking beyond the implications for SSM, I want to focus a bit on some curious claims in Justice Thomas's Maricopa County statement. I should say at the outset that I do so in the spirit of genuine curiosity rather than any sort of ideological ax to grind, because I agree with his bottom line that the Court should have granted cert in one of the SSM cases in October and having failed to do so, should take the Sixth Circuit case (or some other case) ASAP.

Justice Thomas makes the following claims in his brief Maricopa County statement:

1) The Court has a strong presumption in favor of granting certiorari when a lower court invalidates a federal statute;

2) "States deserve no less consideration";

3) The SCOTUS "often" grants cert to "review decisions striking down state laws, even in the absence of a disagreement among the lower courts;"

and yet

4) "for reasons that escape" Justice Thomas, the Court has "not done so with any consistency, especially" in the SSM cases.

I agree with proposition 1), but the other three are puzzling. I'll consider them in turn.

2) Justice Thomas here asserts that a lower court decision striking down a state law is no less worthy of cert than one striking down a federal law. But this seems pretty clearly wrong.

The invalidation of a federal law either affects the whole country or, if it is confined to a particular circuit or state, necessarily creates disuniformity in federal law, as the law would be valid in some places and invalid in others. By contrast, the invalidation of a state law only affects that state and, absent a division of authority among the lower courts on the reasoning of the opinion, creates no disuniformity. So, other things being equal, the invalidation of a federal law will have a broader impact and will implicate uniformity--which, ever since Martin v. Hunter's Lessee, has been recognized as a core concern of the Court's appellate review.

Moreover, because there are fifty states but only one federal government, there will typically be many more lower court cases in which a state law is held invalid than cases in which a federal law is held invalid. If the Court were to grant the same presumption of review to such state cases as it grants to federal cases, that would crowd the docket. However, I hesitate to label this a large concern without seeing actual numbers (more about that in point 3), given that the Court's docket is considerably smaller today than it was a generation ago.

One might also think that it's more important to review laws striking down federal statutes than those striking down state statutes, perhaps because one thinks that states are more likely than Congress to enact laws violating the Constitution, or perhaps for some other reasons. Such a judgment appears to have been implicit in Section 25 of the Judiciary Act of 1789, which afforded review in the SCOTUS when a federal statute was held invalid, while only allowing review (by writ of error) of cases involving state law when a state law challenged as unconstitutional was upheld by the state courts. To be sure, Congress changed this asymmetrical review scheme 100 years ago, and for a substantial period thereafter lower federal court cases invalidating a state statute fell within the Court's mandatory appellate jurisdiction--although the Court frequently manipulated that jurisdiction with summary affirmances. In any event, a Justice could take the view that the policy judgments that were made by the first Congress as an on/off switch for SCOTUS review are still (or once again) valid as a factor to be given some weight with respect to the discretionary decision whether to grant cert.

3) It's not clear what Justice Thomas means when he says that the Court "often" grants cert in cases in which a lower court struck down a state law. If he means "sometimes," well that's clearly right. But saying "sometimes" would render senseless his further claim (claim 4)--that the Court has departed from some consistent pattern in the SSM cases. If the Court merely sometimes grants cert in splitless cases where a state statute has been invalidated then of course it also sometimes doesn't grant cert in such cases. The only way one could say that the Court has acted without a consistency it has ostensibly acted with before is if "often" means something like "nearly always" or at least "usually."

But I don't think it's true that the Court nearly always or even usually grants cert in cases in which a state complains that a lower court has invalidated a state statute. I looked in the empirical literature but couldn't find any definitive study of this question. The studies that have been done do indicate that such cases are more likely to be granted than a random case: State as petitioner increases the likelihood of a grant, and most cases in which a state law has been struck down will involve the state as petitioner. (Some will arise in private litigation, however, or will involve a local government or local government official as petitioner.) Still, I very much doubt that a comprehensive study would find that the Court grants review in most cases in which a state law has been struck down by a lower court, even in the absence of a split. Certainly Justice Thomas doesn't cite any such study. Indeed, I would guess that he shares my hunch about the numbers, and that this fact may explain why he fudges his statement by saying "often" (even though "often" as "sometimes" is not enough to make his claim 4 work).

4) That brings us to claim 4. As I've said before, there were good reasons why the Court should have granted cert in the SSM cases when the Term opened. The only publicly stated reason why it did not was Justice Ginsburg's statement that it's customary for the Court to wait for a split, and that should not have been sufficient, given the importance of the issue and the one-way ratchet effect of not staying the lower court judgments, thereby permitting thousands of marriages to go forward. So maybe the generous way to read Justice Thomas's statement is as a reminder that the Court does indeed sometimes grant cert when a state law has been held unconstitutional, even absent a split. In this view, Justice Thomas's claims are overstated, but the basic point is sound as applied here.

--

Finally, I'll add three postscripts:

First, Justice Thomas ends his Maricopa County statement with the following proclamation: "At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment." He can't possibly mean what he appears to say here. Suppose that a state constitutional amendment blatantly violated some federal constitutional rule--let's say a state constitutional amendment that forbade women from voting in state elections or that outlawed the practice of Islam. Surely a lower federal court could invalidate such a provision and the SCOTUS would not "owe" the state a pointless cert grant followed by a unanimous decision affirming the invalidation in order to let the lower court decision stand.

Second, there is anecdotal evidence (collected in the leading Supreme Court practice book) suggesting that Justice Thomas is right even if "often" means "usually," but for the same reasons that I am skeptical of Justice Thomas's claim, I'm skeptical of this anecdotal evidence. I would be very grateful if any reader can point me to a statistical study that looks at the relative percentages of cert grants in cases in which a state law is invalidated and those in which a federal one is. It would be interesting to see whether my hunch is right or wrong. One further reason to think I might be wrong is that if the Court in fact treats state law invalidation as less cert-worthy than federal law invalidation, that would affect the likelihood that losing parties would seek cert in cases in which the lower federal courts invalidated state laws; lowering the denominator would raise the rate of grants. If this were happening, that would mean I am wrong on my literal view but right in spirit. In any event, it would be great to see actual numbers.

Third, I am grateful to Professors Will Baude, T-J Chiang and Kevin Walsh for helping me formulate some of the foregoing in a private online forum--which is not to say that they are likely to agree with everything I've said here.

Friday, November 14, 2014

by Michael Dorf
On Monday, the Supreme Court issued two unanimous per curiam opinions summarily reversing decisions of federal appeals courts -- i.e., granting certiorari and reversing on the merits in one fell swoop, without the benefit of oral argument. The Court sometimes does this when the lower court has misapplied or misinterpreted federal law but the issue is not sufficiently complicated or divisive to warrant full consideration.

Civil procedure scholars are chewing over the first order, in Johnson v. City of Shelby. There the Court held that dismissal (in this case at the summary judgment phase but more generally at the pleadings stage as well) is not appropriate where a plaintiff's complaint contains sufficient facts to make out a valid legal claim but fails to identify the particular statute creating the cause of action at issue, here 42 U.S.C. § 1983. The ruling is somewhat surprising because it cuts against the grain of two important cases that tightened the pleading requirement for factual allegations: 2007's Bell Atlantic v. Twomblyand 2009's Ashcroft v. Iqbal. Those two cases--collectively sometimes called "Twiqbal" by the cognoscenti--have had a major impact on pleading doctrine in the federal courts, although their actual effect on pre-trial dispositions is subject to debate. (For a useful discussion of the empirical evidence, see this article by David Engstrom.)

The Johnson per curiam could be understood as a signal from the Supreme Court to the lower courts not to treat Twiqbal as a license to generate new grounds for pre-trial dismissals, either in general or in civil rights cases in particular. If so, it remains to be seen whether the Court succeeds. Johnson distinguishes Twiqbal by drawing a line between factual allegations and legal allegations, but then suggests that the failure to cite the proper legal authority should be remedied by giving the plaintiff an opportunity to amend the complaint to include a citation of § 1983. But plaintiffs are always entitled (at least initially) an opportunity to amend their complaints to cure defects--including failure to allege sufficiently plausible facts under Twiqbal--and so the amendment opportunity seems to contradict the core contention of the Johnson opinion in the first place: namely, that there is no obligation to cite the particular legal authority for a claim.

If Johnson ends up adding to rather than clearing up confusion regarding pleading practice in the lower federal courts, that will suggest that maybe the case wasn't appropriate for per curiam reversal after all. Even if the Court might have ultimately ended up unanimous anyway, full briefing and oral argument might have alerted the Justices to nuances and complications that the cert petition alone left unaddressed.

Monday's second per curiam was less problematic, although it uses an aside to raise an issue worth discussing. In Carroll v. Carman, the Court reversed a Third Circuit qualified immunity ruling. Plaintiffs sued a police officer who, without a warrant, had come to their back door, announced himself, and talked to the plaintiffs pursuant to the so-called "knock and talk" exception to the warrant requirement. The plaintiffs argued that the knock-and-talk exception allows police to knock and talk at the front door but not at the back door. Citing an earlier Third Circuit case, Estate of Smith v. Marasco, the appeals court agreed. Moreover, the Third Circuit also said that this limitation on the knock-and-talk exception was "clearly established" by Marasco, so that a reasonable officer would have known that knocking and talking at the back door was a violation of the plaintiffs' constitutional rights.

The Supreme Court summarily and unanimously reversed. Here is the core of the Court's reasoning.

Marasco held that an unsuccessful “knock and talk” at the front door does not automatically allow officers to go onto other parts of the property. It did not hold, however, that knocking on the front door is required before officers go onto other parts of the property that are open to visitors. Thus, Marasco simply did not answer the question whether a “knock and talk” must begin at the front door when visitors may also go to the back door.

And if a case did not address an issue, then that case cannot "clearly establish" anything with respect to that issue. Thus, the SCOTUS concluded, the Third Circuit was wrong.

Now to the interesting aside. In the course of discussing Marasco, the Court says that it assumes "for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances," and then directs the reader to page 7 of its 2012 decision in Reichle v. Howards. There one finds the Court also assuming arguendo that a federal appeals court precedent can clearly establish the law for qualified immunity purposes, but not analyzing the issue any further.

So, should a federal appeals court precedent be able to "clearly establish" the law for qualified immunity purposes? That question implicates the prior discussion (on this blog and elsewhere) regarding the effect of federal appeals court precedents on state courts. My two recent posts (here and here) indicate that there is disagreement over whether a state court can gratuitously decide to be bound by federal appeals court precedents but it is generally (if perhaps not quite universally) accepted that federal appeals court rulings do not now bind state courts. And therefore, one might think that a federal appeals court ruling cannot clearly establish the law for officers within the relevant jurisdiction: After all, if the state court judges in the quiet of their chambers are free to reach different conclusions from those reached by federal judges, then police officers making snap judgments should not be bound by those same federal decisions.

I think that's probably the right answer, but I also think a respectable argument can be made to go the other way. The point of qualified immunity is to avoid unfairly surprising government officials who try in good faith to comply with their legal obligations. As a substantive matter, the Court has taken a very broad view of qualified immunity. Thus, a right is not "clearly established" for QI purposes so long as its "contours" are unclear enough that a reasonable officer might not realize that his particular conduct violates the right. One could argue that a federal appeals court precedent--even though not binding on the states--could nonetheless serve to clarify the law sufficiently to meet this standard.

Consider a stylized example. Let's suppose that a Supreme Court decision called Bloe v. Rumsfeld holds that waterboarding prisoners amounts to unconstitutional cruel and unusual punishment. Then let's say that officials in a New Jersey prison decide they want to subject prisoners to "orange-juice-boarding" (which substitutes orange juice for water but is otherwise identical to waterboarding). Suppose that a Third Circuit opinion in a case I'll call Doe v. Roe (outside the context of qualified immunity) says that orange-juice-boarding is also cruel and unusual punishment. Now suppose that a guard in a Pennsylvania prison subjects a prisoner to "apple-juice-boarding," and is sued by the prisoner. The guard claims qualified immunity. The plaintiff points to both Bloe (the Supreme Court waterboarding case) and Doe (the Third Circuit orange-juice-boarding case) to say that it was clearly established that "liquid boarding" is cruel and unusual punishment, regardless of the liquid used. Even though the Pennsylvania Supreme Court is not bound by Doe, we might nonetheless think that Doe put prison guards throughout the Third Circuit on notice that it doesn't matter what liquid is used.

The reason I find the foregoing reasoning only partly persuasive is that I think that Bloe itself probably should have been enough to clearly establish the unconstitutionality of apple-juice-boarding. Nonetheless, I can see a legitimate argument for saying that there might be cases where Supreme Court precedent falls just short of clearly establishing that what the particular officer did violated rights, but that a federal appeals court case is enough to push the case over the edge. The idea (which I'm only advancing very tentatively) is that the federal appeals court plays a special role in this sort of case: It makes it harder for the officer to say "it never occurred to me that the Supreme Court case applied to facts like these." At the margin, perhaps that's enough to clearly establish what would otherwise be not quite clearly established.

Finally, I think it's worth noting that in the somewhat related context of federal habeas corpus--where the Antiterrorism and Effective Death Penalty Act put in place a similar no-unfair-surprise rule--the statute expressly states that a rule can only be "clearly established" for federal habeas purposes if a Supreme Court decision establishes it. This language of course cuts both ways. On the one hand, it indicates that Congress thought that the sorts of unfair-surprise concerns that give rise to a requirement of "clearly established" law require that the SCOTUS itself be the body to establish the law. That would suggest that a federal appeals court cannot clearly establish the law for qualified immunity purposes. On the other hand, the fact that Congress thought it necessary to expressly spell out that only the SCOTUS gets to "clearly establish" federal law indicates at least the conceptual possibility of law being clearly established by lower courts.

Thursday, November 13, 2014

With a few races still left to be decided, the new House of Representatives in 2015 will have 244 Republicans and 186 Democrats. Even on the assumption that the remaining five seats all end up in the Democratic camp, and even assuming that all Democrats would vote for any increase in the debt ceiling that would be needed, and even assuming that the Republican leadership would again break the so-called Hastert Rule by allowing the House to vote on something that a majority of the Republicans oppose, that would mean that the Republicans need to come up with 27 members who would vote to increase (or suspend, or repeal) the debt ceiling. (Let us leave aside the possibility of a filibuster by Republican senators, even though a non-published analysis that I have seen from Merrill Lynch suggests that the big players in the financial markets are worried even about that.)

At the very least, this suggests that the reassuring talk from people like soon-to-be Senate Majority Leader Mitch McConnell and House Majority Leader Kevin McCarthy about "responsible" governing could soon be ground up in the gears of base-pleasing nutcasery. As I have noted many times, this will be their last chance to "get" Obama, and it will come to a head at least 18 months before the next election. I am not betting on a smooth resolution to the next drop-dead date on the debt ceiling.

Which brings us back to the question that Professor Dorf and I have been asking for quite some time: On what amounts to an existential issue of policy, where are the legal scholars? In particular, where are the legal scholars who disagree with our conclusions, and who claim that the President will have no choice but to default on the nation's obligations for the first time ever, if the Republicans refuse to increase or neutralize the debt ceiling after it reawakens on March 15, 2015? Our analysis could be wrong, of course, but if it is, no one has offered any arguments against us in a published article (or, with the one exception to which I will turn shortly, even in the form of a work in progress).

There have been some articles that reach essentially the same bottom line that we reach. In a Dorf on Law post several weeks ago, I briefly described a recent student note in a top law review, in which the author wended his way through various arguments relating to the federal debt ceiling. Although I found much to compliment in that piece, I did note the surprising fact that the student editors of the law review (as well as the author himself) simply failed to engage in what I always thought was standard operating procedure: a preemption check. The note does not cite the work that Professor Dorf and I published in Columbia Law Review over the past couple of years (the central argument of which is summarized in this Verdict column).

It turns out that the failure to do preemption checks is more widespread. A Democratic staffer on Capitol Hill recently published an article in the Harvard Journal on Legislation, but he did not cite any of our work, either. Like the student note that I described above, however, that article has its virtues, including a nice rendition of the history of the debt ceiling. A student note in yet another top law review cites our work in passing, in the course of agreeing with the part of our argument regarding the 14th Amendment's Public Debt clause. (I should note that the granddaddy of the 14th Amendment articles was published as a student note in 1997 by my now-colleague Michael Abramowicz, whose prescience in anticipating this issue is eerie.)

Lest it appear that I am obsessed with being cited, let me be absolutely clear. The point of the scholarly enterprise is supposed to be something resembling an advocacy process. People bring forth ideas and debate them in good faith, other people contest those ideas, and knowledge advances. In some cases, as I discussed in my Dorf on Law post earlier this week, the result actually improves public policy. Here, however, that has not happened.

As I noted on Tuesday, however, it is no longer accurate to say that there has been no scholarly engagement that has challenged our arguments. In a forthcoming article in Connecticut Law Review, Professor Chad DeVeaux of Concordia University School of Law carefully analyzes the issues raised by our "trilemma" analysis and reaches a different conclusion. Although I ultimately find his argument unsatisfying, it is a serious argument, and Professor DeVeaux's writing has forced me to hone my thinking on this in a way that advances the discussion. The disagreements that I describe below are offered in that spirit.

Professor DeVeaux builds his analysis upon the famous Youngstown Steel Seizure Case, in which Justice Jackson laid out the "three zones" of presidential power. Professor DeVeaux's argument leads him to identify a fourth zone of power, which he says Congress would inadvertently create if it legislated a trilemma and thus gave the President no good options. As he summarizes his point in his abstract: "By commanding the president to implement particular programs, while denying him the funds necessary to pay for those endeavors, Congress tacitly afforded the president the discretion to take any of the three corrective actions suggested above" (emphasis added).

It is essential to understand that Professor DeVeaux reaches this conclusion reluctantly. He clearly wishes that Congress would not create a trilemma, because Congress is shooting itself in the constitutional foot in doing so. He thus clearly differs from Professor Eric Posner, who is generally so eager to expand executive power that he gleefully grabbed onto the debt ceiling analysis as an excuse to say that all bets are off. If Congress gives the President no good options, Posner says, then the President can do whatever he wants. (Again, this is Posner's general view about executive power, not just in the context of the debt ceiling.) Professor DeVeaux does not engage in opportunistic pretzel logic but instead soberly asks a neutral question about whether there are limits on Presidents who face trilemmas.

But Justice Jackson's analysis does not get us to where we need to go. The key is his claim that "only Congress itself can prevent power from slipping through its fingers." That is unsatisfying in this context for two reasons. First, it is vague. It might simply mean that Congress possesses the power to guarantee that the President has no wiggle room, and if Congress gives him an excuse to take unilateral action, then Congress has no one to blame but itself. Only it can "prevent power from slipping through its fingers," because only Congress can pass the laws in a way that avoids trilemmas.

That, however, does not mean that Justice Jackson would say that the President has no constitutional responsibilities of his own, even after Congress has blown it. The motivating idea behind the Buchanan-Dorf analysis has always been that the separation of powers limits the President, requiring him to choose the "least unconstitutional option," which means that -- even if Congress has done a stupid thing -- the President is required to stanch the bleeding, not open more veins to allow the patient to bleed out. Congress could (and should) have made it unnecessary for the President to decide how to act responsibly, but its failure to do so is not, even under Justice Jackson's formulation, carte blanche for executive discretionary actions.

More fundamentally, the second reason that Justice Jackson's formulation is not controlling here is that, even if Professor DeVeaux's reading of it were accurate, it has been overruled. As Professor Dorf and I have discussed in our articles, the Line-Item Veto case (Clinton v. City of New York) stands for the proposition that Congress not only cannot accidentally give away its authority under the Constitution, but it cannot even choose to give it away. If Justice Jackson really meant that Congress can, through inaction, alter the balance of powers among the branches of government, he was wrong (and his successors have said so).

In the end, then, Professor DeVeaux's analysis is not really wrong, but incomplete. He provides a different way to think about what we have called the trilemma, using a major Supreme Court case to tease out some important issues. Having concluded that Justice Jackson's analysis provides no further guidance, he stops too soon, saying only that the President would have unfettered authority to choose his course of action. That would only be true if there were no further reasons to believe that the Constitution limits the powers of the President. But there are.

Again, however, this is "good stuff," as the saying goes. I learned a lot from Professor DeVeaux's paper. Even though our ultimate conclusion is not undermined, the paper reminds us why separation of powers principles are so essential to guiding our analysis.